Parentage (aka Paternity)

As early as possible, the juvenile dependency court must determine who are the legal parents of a dependent child/youth. To be entitled to reunification in a dependency case, that parent must be a legal parent.

If parents of a child are married, or in a registered domestic partnership when the child is born, the law assumes the married parents or domestic partners are the legal parents of that child. However, if a child is born to unmarried parents, parentage may need to be formally established by the court.

Determining parentage can be a complicated but important process. The rights and responsibilities of legal parents differ from the rights and responsibilities of biological or other parents. Biology alone does not determine legal parentage. A child can have more than two legal parents.

Paternity/Parentage in the case of unmarried parents can be established only by a voluntary declaration of paternity or by court order per Family Code Section 7573.

The Juvenile Dependency Court’s Inquiry

At the initial hearing (typically detention), the dependency court has a duty to inquire about parentage. If parentage cannot be established then, the court must continue the inquiry at all subsequent hearings until parentage is established. Specific questions the court must ask include, but are not limited to:

Has there been a parentage judgment or court decision.

Was the mother married?

Did the mother believe she was married?

Has the mother received support payments or promises of support for the child?

Has a man formally or informally acknowledged paternity; including by signing a voluntary declaration of paternity or by having his name placed on the child’s birth certificate?

Have there been genetic tests or blood tests?

Has the child been raised jointly with another adult?

If/when at any proceeding regarding the child the issue of parentage is addressed by the court:

The court must ask persons present whether any parentage finding has been made, and, if so, what court made it, or whether a voluntary declaration has been executed and filed under Family Code Section 7574.

The court must direct the court clerk to prepare and transmit Parentage Inquiry—Juvenile form JV-500 to the local child support agency asking whether parentage has been established through any superior court order or judgment or through the execution and filing of a voluntary declaration of paternity.

The office of child support enforcement must prepare and return the completed JV-500 within 25 judicial days, with certified copies of any such order or judgment or proof of the filing of any voluntary declaration attached; and

The court must take judicial notice of the prior determination of paternity.

To determine parentage, the court may order the child and any alleged parents to submit to genetic tests and proceed under Family Code 7550 seq.

The court may make a determination of parentage or non-parentage based on the testimony, declaration, or statements of the alleged parents. Any alleged parents must be advised by the court that if parentage is determined, the parent will be responsible for financial support of the child and for reimbursement of any benefits paid on behalf of the child.

Voluntary Declaration of Paternity/Parentage

If a Voluntary Declaration of Parentage (VDOP), using form CS 909, has been executed (by both parents) and filed with the California Department of Support Services, that declaration establishes the parentage of a child and has the same force and effect as a judgment of parentage by the court. For more information about establishing parentage/paternity through a Voluntary Declaration of Parentage, please visit the California Courts website here.

Family Code 7613 (a) states that if a woman conceives through assisted reproduction with a donor not her spouse, with the consent of another intended parent, that intended parent is treated in law as if he or she were the natural parent of the child. Failure to consent in writing does not preclude the court from finding that the intended parent consented if the court finds by clear and convincing evidence that prior to the conception of the child, the woman and the intended parent had an oral agreement that both would be parents of the child.

Review Family Code section 7574 for more information regarding the Voluntary Declaration of Parentage (VDOP). Due to the fact that the VDOP (CS 909 form) must be witnessed and notarized, a blank copy cannot be obtained online. You can ask for the CS 909 form to be sent to you by mail by e-mailing askpop@dcss.ca.gov, or you can get it at your county’s local child support agency, registrar of births, family law facilitator at your local superior court, or welfare offices.Here is a sample copy of CS 909

Types of Parents

The following categories of parents are relevant to juvenile dependency court proceedings and are defined by statute and/or case law in the State of California. As discussed above, the type of parent an individual is designated may afford differing rights and responsibilities in a juvenile dependency proceeding.

A woman who gives birth with the intention of raising the child is conclusively the presumed mother even if she later abandons the child. In re D.S. (2012) 207 Cal.App.4th 1088.

However, where the natural mother is dead, a woman may achieve presumed mother status when she is able to demonstrate that she has held the child out as her own child and accepted the child into her home. In re Salvador M. (2003) 111 Cal.App.4th 1353.

A presumed father/parent is a person whom the law presumes to be the legal father/parent of the child with all of the attendant rights and responsibilities. A presumed father/parent may or may not be the child’s biological father/parent.

The parents signed a Voluntary Declaration of Parentage (see section above) or attempted to marry.

The presumed parent and the child’s natural mother are (or have been) married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by the court.

The presumed parent and the child’s natural mother attempted to marry each other before the child’s birth by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and any of the following is true:

The child is born during the attempted marriage or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.

The child is born within 300 days after the termination of cohabitation.

The parents married after the child’s birth and:

The presumed parent is named as the child’s parent on the child’s birth certificate.

The presumed parent is obligated to support the child under a written voluntary promise or by court order.

The presumed parent receives the child into his/her home and openly holds out the child as his/her natural child.

A child may have more than one presumed parent. In such cases the court is required to weigh the competing claims and determine which claimant should be recognized as the legal parent.Family Code Section 7612(b)

In an appropriate action, a court may find that more than two persons with a claim to parentage are legal parents if the court finds that recognizing only two parents would be detrimental to the child.Family Code Section 7612(c)

A “Kelsey S.” father was defined in a California Supreme Court case, Adoption of Kelsey S. (1992) 1 Cal. 4th816. A “Kelsey S.” father is a biological father who (1) is prevented by the other or a third party from establishing a parent-child relationship and (2) promptly acts to assert the parent/child relationship once the father knows or should have known of the existence of the child. To be considered a “Kelsey S.” father, the parent must demonstrate a full commitment to his/her parental responsibilities, emotional, financial and otherwise after discovering the existence of the child. Adoption of Kelsey S. (1992) 1 Cal. 4th816; In re Hunter W. (2011) 200 Cal.App.4th 1454.

Even though a father may be biologically related to the child he does not have legal rights and responsibilities to that child in a juvenile dependency case. A biological father is entitled to notice of dependency proceedings and the right to appear in court but is not automatically entitled to reunification services. However, a biological father may be offered reunification services if the court finds that it would benefit the child to do so.Welfare and Institutions Code Section 361.5(a)

A biological father is a father who is genetically related to the child but who has failed to take any steps to become a presumed father. Michael U. v. Jamie B. (1985) 39 Cal.3d 787.

If a biological father appears promptly upon notice of the dependency case, he has the right to develop a relationship with the child. In re Julia U. (1998) 64 Cal.App.4th 532.

When a biological father wishes to assert his paternity post termination of reunification services, he must file a Welfare and Institutions Code Section 388 petition and must show the court that recognizing his paternity would be in the child’s best interest. In re Vincent M. (2008) 161 Cal.App.4th 943.

An adjudicated parent is one who has an existing judicial determination that a parent/child relationship exists. A paternity judgement does not establish presumed parent status but it may rebut a presumption of paternity in favor of another man.

An adjudicated father has established paternity so he is treated as a biological father. He may be granted reunification serviced but is not entitled to them if, and only if he can persuade the court that such reunification services will benefit the child.

An alleged father is a man who may be the father but whose biological paternity has not been determined and who has not been found to be presumed by the court.Family Code Section 7630

Alleged fathers have the right to notice of dependency proceedings, the right to appear before the court, and the right to assert their interest in the child by filing a Statement Regarding Parentage form JV-505. An alleged father is not a full party to the case and does not have a right to custody or reunification services unless and until his parentage is established.

An equitable parent is a non-biological parent who attempts to take full responsibility for the child but who is prevented from doing so by the mother or a third party. In the Jerry P. case, the father supported the mother through her pregnancy and visited the baby every day while it was in the hospital. The baby was abandoned by the mother. CPS prohibited this father from bringing the baby home. He appeared at every hearing, sought presumed father status, completed parenting and CPR classes. On appeal, he was determined by the reviewing court to have done all the things required for a biological father to be a father with Kelsey S. status. He had an existing familial relationship with the child; he demonstrated a loving, nurturing, parental relationship with the child; and he had been prevented from physically bringing the child into his home by a third party. In re Jerry P. (2002) 95 Cal. App. 4th 793.

A registered domestic partnership is a legally binding contract entered into by two people who want to formalize their relationship without going through a marriage ceremony. Registered domestic partnership is available to all same sex couples and to a heterosexual couple if one partner is at least 62 years of age. Partners may register by filing the Declaration of Domestic Partnership form NP/SF DP-1 and submitting it with the appropriate fee to the Secretary of State.

If parents are in a registered domestic partnership when a child is born, the law assumes the domestic partners are the legal parents of the child.